Discover Marketplace Terms of Use

Last Updated: October 8, 2013

Welcome to the OUYA (“OUYA”, “us”, or “we”) Discover Marketplace, where you can download games and apps to play and use on your OUYA console (the “Marketplace”). We realize that this text box is one of the few things standing between you and playing some new games, but it’s important that you carefully read these Terms of Use (“Terms”). So please read these Terms because they’re a contract between you and OUYA and the rules, which govern your use of the Marketplace. Our goal is to be transparent, so if you have any questions feel free to send us a note at bettercallsaul@ouya.tv. We’ll happily answer any questions you may have.

1. Accepting the Quest
By accepting these Terms or by using the Marketplace, you agree to be bound by these Terms. If you don’t agree to these Terms, don’t use the Marketplace. If you’re reading these Terms in a language other than English, we provided the translated version for your convenience only, but the English version is the official version that binds you and us. You may also find these terms published online at http://www.ouya.tv/discover-marketplace-terms-of-use.

2. What’s With The Defined Terms?
You’ll notice that some words appear in quotes in the Terms. They’re called “defined terms,” and we use them so we don’t have to repeat the same language again and again, and to make sure that the Terms are consistent. We’ve included the defined terms throughout because we want it to be easy for you to read them in context.

3. Changes To Terms Or Marketplace
Though we’ll try not to change these Terms too frequently, there are sometimes reasons why we need to modify these Terms, and we may do so at any time. Of course, if we do, we’ll let you know either by posting the modified Terms on the Marketplace or through other channels. We probably won’t communicate these changes to you using an owl, a raven, or IP-over-Carrier Pigeon. However, when we tell you about the changes, it’s important that you review the modified Terms because if you continue to use the Marketplace after we’ve told you that the Terms have been modified, you’re telling us that you agree to be bound by the modified Terms. If you don’t agree to the modified Terms then you can’t keep using the Marketplace… sorry. Because the Marketplace is evolving over time we may change or discontinue all or any part of the Marketplace, at any time and without notice, whenever we feel like it. It sounds harsh, but it just means that we can focus on bringing you more awesomeness and not waste time on things that aren’t cool or fun.

4. This Adventure Isn’t for Everyone
You may use the Marketplace only if you are 13 years or older and are not barred from using the Marketplace under applicable law.

5. Registration and Your Information
If you want to use the Marketplace you’ll have to create an account (“Account”). You can do this either online at http://www.ouya.tv or via the console when you first fire up your OUYA. It’s important that you provide us with accurate, complete and up-to-date information for your Account and you promise to keep your Account information up-to-date. If you don’t, we reserve the right to suspend or terminate your Account, though we really would prefer to not exercise that right. You agree not to share your password with other people, animals, life-forms, bots, organic matter, etc. and you’ll let us know if there is any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.

6. Privacy Policy
Please refer to our Privacy Policy (http://www.ouya.tv/privacy-policy) for information on how we collect, use and disclose information from our gamers.

7. Rights to Games and Apps
“Games and Apps” means software, text, graphics, images, music, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Marketplace. The Games and Apps belong to us and our licensors – for example – OUYA developers create and make games available via the Marketplace. Any reviews or comments that you provide to us in the form of feedback about the Marketplace or the Games and Apps are called “Your Content”. Your Content (not surprisingly) is yours and nothing in these Terms restricts any rights that you have to use it now and forever.

8. Content Ownership, Responsibility and Removal
Subject to your ownership of Your Content, OUYA and its licensors exclusively own all right, title and interest in and to the Marketplace and Games and Apps, including all associated intellectual property rights. You acknowledge that the Marketplace and Games and Apps are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Marketplace or Games and Apps.

Sometimes we may discover that one of the Games and Apps on the Marketplace violates our agreement with our developers or other legal agreements, laws, regulations or policies. You agree that under those circumstances we have the right to remotely remove those Games and Apps from your device at our sole discretion.

Games and Apps available on the Marketplace may be subject to export controls or restrictions by the United States or other countries or territories. You agree to comply with all applicable U.S. and international export laws and regulations regarding the download, installation and/or use of the Marketplace and/or the Games and Apps. These laws include restrictions on destinations, end users, and end use.

9. Rights in Content Granted by OUYA
Subject to your compliance with these Terms and any separate end user license agreement for the Games and Apps that apply to your access to and use of those Games and Apps you download, OUYA grants you access to the Marketplace to download and play the Games and Apps for your own personal, non-commercial purposes.

10. Buying Things
The Marketplace is a marketplace, after all. We strive to make all of the Games and Apps on the Marketplace free to try. Some are completely free, while others may require a paid license or subscription to play the full game. All taxes (including sales tax and VAT) are included in the purchase price listed on the Marketplace. Prices for the Games and Apps offered on the Marketplace may change at any time, and OUYA and the Marketplace don’t provide price protection or refunds if a price is reduced or if there’s a sale after you buy one of the Games or Apps. You agree to pay for any Games and Apps that you purchase and that we may charge your credit card or deduct the purchase amount from your available Account balance for any Games and Apps you purchase. Though we hate fees too, we know that our gamers are using credit cards and payment instruments from all around the world. As such, you agree that you are solely responsible for any and all fees associated with purchases you make on the Marketplace. If the item you purchased becomes unavailable after you pay but before you download, your only remedy is a refund from OUYA.

11. Don’t Do Bad Things
We really want everyone to have a great experience using the Marketplace. That’s why you agree that you won’t do any of the following things, otherwise we might have to suspend or terminate your Account.

Use, display, mirror or frame the Marketplace, or any individual element within the Marketplace, OUYA’s name, any OUYA trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without our express written consent, except as is clearly permitted by the functionality of the services.

Access, tamper with, or use non-public areas of the Marketplace, OUYA’s API’s, or the technical delivery systems of OUYA’s providers;

Attempt to probe, scan, or test the vulnerability of any OUYA system or network or breach any security or authentication measures;

Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by OUYA or any of OUYA’s providers or any other third party (including another user) to protect the Marketplace or Games and Apps;

Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;

Use any meta tags or other hidden text or metadata utilizing a OUYA trademark, logo, URL or product name without our express written consent;

Use the Marketplace or Games and Apps for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;

Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Marketplace or Games and Apps to send altered, deceptive or false source-identifying information;

Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Marketplace or Games and Apps;

Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Marketplace;

Collect or store any personally identifiable information from the Marketplace from other users of the Marketplace without their express permission;

Impersonate or misrepresent your affiliation with any person or entity;

Violate any applicable law or regulation; or

Encourage or enable any other gamer or individual to do anything listed above.

Although we’re not obligated to monitor access to or use of the Marketplace or Games and Apps or Your Content or to review or edit these Games and Apps or Your Content, we have the right to do so for the purpose of operating the Marketplace, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Games and Apps or Your Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Games and Apps or Your Content to be objectionable or in violation of these Terms or Content & Review Guidelines for Developers (https://devs.ouya.tv/developers/docs/content-review-guidelines). We have the right to investigate violations of these Terms or conduct that affects the Marketplace. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.

12. DMCA/Copyright Policy
OUYA respects copyright law and expects you to do the same. It is our policy to terminate Account holders or subscribers who repeatedly infringe the rights of copyright holders. Please see OUYA’s Copyright and IP Policy at http://www.ouya.tv/copyright for further information.

13. Termination
We may terminate your access to and use of the Marketplace, at our sole discretion, at any time and without notice to you. This includes our suspending your account if you are inactive for twelve months in a row. You, too, may cancel your Account at any time by sending an email to us at support@ouya.tv. Any balance remaining on your Account at the time of termination is not redeemable for cash and cannot be returned to you as a cash refund, except as required by law. Any unused balance on your Account is not transferable. Upon any termination, discontinuation or cancellation of Marketplace or your Account, the following provisions will survive: “Rights to Games and Apps,” “Content Ownership, Responsibility and Removal,” “Warranty Disclaimers,” “Indemnity,” “Limitation of Liability,” “Dispute Resolution – Ready, Fight!,” and “General Terms.”

OK. We get it. There’s a lot to digest in these Terms. But we’re not done yet! Let’s not be too hard on our lawyers who “told” us (albeit nicely!) to include these sections in the Terms. They’re driven in large part by legal precedent and we don’t have a lot of flexibility with the language. Among other things, these sections say that the Marketplace, as a platform, which makes Games and Apps available to you, is not responsible for such Games and Apps.

14. Warranty Disclaimers
AS BETWEEN YOU AND OUYA, THE MARKETPLACE AND GAMES AND APPS ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. We make no warranty that the Marketplace will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Games and Apps.

15. Indemnity
You will indemnify and hold harmless OUYA and its officers, directors, employees and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Marketplace or Games and Apps; (ii) Your Content; or (iii) your violation of these Terms.

16. Limitation of Liability
NEITHER OUYA NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE MARKETPLACE OR GAMES AND APPS WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE MARKETPLACE OR GAMES AND APPS, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OUYA HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.

IN NO EVENT WILL OUYA’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE MARKETPLACE OR GAMES AND APPS EXCEED THE AMOUNTS YOU HAVE PAID TO OUYA FOR USE OF THE MARKETPLACE OR GAMES AND APPS OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO OUYA, AS APPLICABLE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN OUYA AND YOU.

17. Dispute Resolution – Ready, Fight!

Governing Law
These Terms and any action related to them will be governed by the laws of the State of California without regard to its conflict of laws provisions.

Agreement to Arbitrate
You and OUYA agree that if you or OUYA have any dispute arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity of these Terms, or the use of the Marketplace or Games and Apps (collectively, “Disputes”), those Disputes will be settled by binding arbitration. There are exceptions to this agreement to arbitrate. Both you and OUYA retain the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of your or OUYA’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). The exclusive jurisdiction and venue of any IP Protection Action will be the state and federal courts located in the Northern District of California, and both you and OUYA waive any objection to jurisdiction and venue in such courts. You acknowledge and agree that you and OUYA are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and OUYA otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.

Arbitration Rules
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) in effect at the time of the arbitration, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.

Arbitration Process
Whoever wants to initiate arbitration, either you or OUYA, must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175 and a separate form for California residents at http://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015822.) The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by you and OUYA from the AAA’s roster of arbitrators. If we’re unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

Arbitration Location and Procedure
Unless we together otherwise agree, the arbitration will be conducted in the county where you reside. If your claim doesn’t exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and OUYA submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction over the arbitration. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section in these Terms as to the types and amounts of damages for which you or OUYA may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law. We won’t seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration. We’re not trying to be jerks here.

Fees
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages doesn’t exceed $75,000, we’ll pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).

Changes
Notwithstanding the provisions of the “Changes To Terms Or Marketplace” section above, if OUYA changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to bettercallsaul@ouya.tv within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and OUYA in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

18. General Terms
These Terms are the entire and exclusive understanding and agreement between you and OUYA regarding the Marketplace and Games and Apps, and these Terms supersede and replace any and all prior oral or written understandings or agreements between OUYA and you regarding the Marketplace and Games and Apps. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.

You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. We may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.

Any notices or other communications provided by OUYA under these Terms, including those regarding modifications to these Terms, will be given by OUYA (i) via email; or (ii) by posting to the Marketplace. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of OUYA. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.

19. Contact Information
If you have any questions about these Terms or the Marketplace please contact OUYA at bettercallsaul@ouya.tv.

20. Got Feedback?
Gamers created OUYA, so we want to hear from you! If you’d like to provide feedback to us about the Marketplace, please go ahead by emailing us at feedback@ouya.tv.

You Are Done!
Phew! You made it through our Terms – good for you! Now go and enjoy OUYA!